Getting My First Expert Witness Case
I had my first case thirty days after not knowing anything about being an expert witness.
A seminar titled Career Alternatives for Nurses caught my attention.
In the fall of 1987, I sat in a conference room listening to a nurse talk about jobs in home care, utilization review, and risk management. The speaker also mentioned that nurses could be expert witnesses.
At the time, I was employed as a nursing quality assurance coordinator and enjoyed analyzing data and developing plans to improve care. However, I was traveling 1.25 hours one way on the most heavily trafficked roads in New Jersey and was getting exhausted from the trips.
The seminar leader explained that nurses testified in court about standards of care. “That’s fascinating,” I thought. I have 20 years of nursing experience as a staff nurse, author, diploma school educator, nursing staff development director, and nursing quality assurance coordinator. “Why not add expert witness to that list? ”
Could I be an expert witness?
My other qualifications include earning a master’s degree in nursing, coauthoring a book about the nursing process, teaching staff nurses and department managers, and enjoying writing.
I have years of staff nurse experience in medical-surgical nursing. While I was director of staff development, I maintained a clinical role by covering the nursing units during in-services and working occasional shifts as a staff nurse.
When I returned to work the next day after the seminar, I called the attorney who ran the hospital’s risk management department. “How can I get into expert witness work?” He explained how I could locate attorneys by describing the data in the state’s jury verdict analysis publication and Martindale Hubbell (now martindale.com).
My life changed forever when I walked into my county courthouse’s library. I used the jury verdict analysis publications in the library to determine which attorneys were doing nursing or medical malpractice cases. I copied down information from the volumes of Martindale Hubbell including the attorneys’ contact information.
When I had a list of about 20 attorneys, I sent letters of introduction explaining that I was available to review medical surgical cases as a nursing expert witness, enclosed my CV, and sat back to see what would happen.
My Leap of Faith
At about the same time I went to the seminar, I reached the end of my desire to be an employee and decided to quit my job.
The seminar leader stirred my desire to be self-sufficient. I planned to start a business by piecing together sources of income: consulting with hospitals on quality assurance and documentation issues, working with attorneys, being a PRN staff nurse, writing books, and teaching seminars for a national seminar company.
I resigned in November 1987 and gave up a paycheck forever. What a leap of faith to quit my job, considering that my husband and I had faced bankruptcy five years earlier when my husband’s business failed! That experience, which involved the threat of losing our house to satisfy the loans, made me determined not to borrow any money again. To this day, I have never borrowed money to keep my business going.
Expert Witness Work Begins
When I sent out those letters, I didn’t realize that medical-surgical nurses were (and are) frequently the targets of suits. Attorneys needed nursing experts and lots of them. Experts with my credentials were uncommon, and I immediately got the attention of two defense attorneys: one in October 1987 and one in November 1987.
The first attorney sent me a case that was easy to defend. It involved a young girl who fainted in the bathroom and cut her knee on the smashed glass IV bottle.
The second attorney who contacted me said he defended an LPN who worked the night shift. One cold March evening, an elderly, confused man walked out of the hospital in his patient gown and knocked on doors in the neighborhood. After the police brought him back, the doctor wrote an order for chest and wrist restraints. The LPN went into the room with the RN assigned to him and ensured he was in his chest restraint. No one put wrist restraints on the patient.
While the LPN attended to her wing of patients, the patient untied his chest restraint, got out of bed, removed the window screen, walked out onto the hospital roof, and fell into the parking lot in front of the emergency department. He survived his fall and died later from his cancer.
First Trial
After I wrote my November 1987 report defending the LPN, the attorney called me to discuss scheduling a trial for January 1988. I called a friend in a panic. “I wanted to be an expert witness, but I never thought I’d have to testify on the second case I reviewed!”
Was I ever anxious during my first trial? The defense attorney led me through the direct exam, and then the plaintiff’s attorney stood up to cross-examine me. I looked at him with dread. He asked only one question: “Was there any documentation that the wrist restraints were placed on the patient?” “No.”
When the defense attorney called after the trial ended, I put him on speaker phone while my husband, son, and I rejoiced to hear that the jury found the LPN not negligent. The jury found the RN liable and provided a small award.
That initial batch of 20 letters to attorneys continued to bring me work, repeat business, and word-of-mouth referrals, and my expert witness caseload grew.
In 1988, I learned about the American Association of Legal Nurse Consultants (AALNC), which was a year old. I attended the second annual conference and became more knowledgeable about the field. When asked what kind of legal nurse consultant I was, I learned to say, “I am an independent LNC and an expert witness.”
Med League Support Services
One day in 1989, a plaintiff’s attorney asked me to review an emergency department nursing case. “I’m not an ER nurse,” I told him. “But I know a masters-prepared clinical specialist who would be great.” I connected them, sat back, and the light bulb went off. I had done both parties a favor without any financial compensation. “Is there a business supplying expert witnesses?” It turned out there was. Attorneys were grateful to be able to turn to me to find experts for them.
After the request for an ED case review, I began considering how to make the service profitable. Earlier in my life, I had been involved in two multi-level marketing companies. One sold cleaning products, and the other sold cosmetics. These companies provided excellent training about sales and business structure.
What I learned from those experiences was:
- Your income is limited by the number of hours you can work. If you recruit others to work for you, you can expand your income by getting a piece of other people’s hours.
- When you are marketing, you must develop a hard shell. Each “no” brings you closer to the person who will say “yes.” When faced with a no, you learn to say, “Next.”
- I was not destined to sell soap or cosmetics. With my healthcare background, my opportunities were wider than door-to-door sales. I knew I could use my skills more profitably.
Med League Support Services
After getting this request for an ER nurse in 1989, I formed Med League Support Services as a sole proprietorship. Using the relationships I had built over the years, I began to recruit nurses to review cases for me. The first expert I got under contract was the ER nurse. She worked with me as a subcontractor for the next 25 years.
Intending to be a one-stop shop, I expanded my services beyond being a liability expert witness and supplying other experts. We brought in cases involving personal injury, medical and nursing malpractice, product liability, toxic tort, criminal, workers’ compensation, mass tort, elder law, wills and estates, family law, and professional licensure.
I reviewed cases as a testifying nursing liability expert for 20 years and enjoyed almost every aspect of the role. Cross-examination is not my favorite.
FRE Rule 1006 Cases
Shortly after I started reviewing cases as an expert, in around 1990, one of my clients asked me to summarize records of a man who had a botched laparoscopic cholecystectomy.
The patient developed a fistula that leaked bile, which digested his abdomen. No nursing liability issues were involved.
My client wanted me to explain to the jury what this deceased patient went through. When I testified in court, I shared poignant quotes from the record. Tears poured from the patient’s wife and daughter. The jury gave the family a substantial verdict.
When I first began explaining medical records in my state, there was no wide-scale acceptance of this role until one of our judges endorsed it. I had a direct role in this decision because I convinced one of my clients to hire a nurse to explain the medical records of a woman who died from lung cancer. When the defense attorney protested using this nurse as an expert, an open-minded judge saw her value and rejected the defense’s position.
The role is now called expert fact witness, or Rule 1006 expert. I testified for 25 years in this capacity in my state, several others, and in both state and federal trials.
Expert Witness Business Growth
As my business grew, I added employees and more subcontractors. From an initial focus on nursing malpractice cases, I began accepting behind-the-scenes work, including:
- Obtaining medical records
- Screening cases for merit
- Providing timelines and chronologies
- Writing deposition questions
- Obtaining medical literature
- Researching opposing experts
- Preparing demonstrative evidence
In the beginning, I did not require my experts to send me their reports before submitting them to my clients. However, one day, a client called to complain about the semi-literate report he’d received from one of my experts. I was horrified when I saw what she had put together. After that, I insisted that the experts send the reports to me for proofreading. I resolved issues before the report could be presented to the attorney and developed resources for training the experts in their roles.
Moving Out
Initially, my business was in my house. We lived at 55 Britton Road, a single-family house, so I added Suite 500 to the address. I figured Suite 1 would be a dead giveaway that I was working out of my house, so Suite 500 had a nice ring.
At first, my “office” was in a corner of the family room. My desk had two filing cabinets with a board across the top. My husband and I tried to share a computer, but that was short-lived. He was also running his business out of the house. Then we turned the family room into my husband’s office and put my desk in the living room.
The workday never ended. I worked all day and into the evening. We had two kids under the age of ten. One day, my youngest son, who was three, asked me for something. Without turning around, I told him (rather self-righteously, I’m afraid) that I could not help him I was working. He burst into tears and said, “I feel like such a pest.” His reaction spurred me to hire a part-time employee to free up some time.
Our decision to get another house resulted from my discussion with my spouse in 1996. He said, “Our youngest son does not need a bedroom. I could use his bedroom for an office.” I disagreed. We bought a house 10 miles away and turned the first house into an office. We had three employees coming in (two of mine and one of his) for two years until a neighbor reported us for violating the zoning rules.
And Then
Fortunately, we had already accepted an offer to purchase a 3,600-square-foot office condo. The zoning officer who came to our house took pity on us and did not close our businesses down. Within a month, we moved out of the office house into the office condo. In one of our best financial decisions, my husband and I bought and rented the condo to our businesses. The rent we took paid for the condo three times over.
The condo became part of the sale when I handed over the keys to Med League’s new owner on January 2, 2015.
Being an expert witness is a challenging and rewarding role. With scarce resources to help the new expert, I am delighted to share what I’ve learned.
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Pat Iyer is president of The Pat Iyer Group, which develops resources to assist LNCs in obtaining more clients, making more money, and achieving their business goals and dreams.
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